Free speech advocates and internet companies assailed the rule as an attack on First Amendment rights. Bailey, now co-deputy director of the FBI, withdrew the rule but claimed it did not infringe free speech
BY: RUDI KELLER
Missouri Independent
One of former Missouri Attorney General Andrew Bailey’s headline-grabbing actions — a rule that would have required social media companies to provide third-party content moderators — was quietly dropped just before he resigned.
Bailey became co-deputy director of the FBI on Monday and was replaced as attorney general by Catherine Hanaway. The rule for social media companies was announced in May and hailed by Bailey as a protection for individual free speech on popular platforms.
“This rule marks the beginning of a sustained effort to dismantle the ‘Big Brother’ speech-control machinery of corporate America,” Bailey said in a May 6 news release.
The proposed rules were published in the Missouri Register on June 16. Comments closed on July 16, opening a 59-day window for the next step, filing the proposal with the legislature’s Joint Committee on Administrative Rules.
The rule was filed with the committee but withdrawn on Friday. Bailey’s office did not put out a news release about the decision to withdraw the rule.
The proposal sought to use the attorney general’s authority under Missouri’s consumer protection laws to impose the requirements. Any user would be allowed to select a content moderator of their choosing — either the system provided by the social media platform or a third party — when they created an account and every six months it is active.
Free speech advocates and lobbying groups for the communications industry filed comments arguing Bailey had overstepped his authority, was imposing unworkable requirements and violated the free speech rights of the social media providers.
“This rule is economically inefficient, technically unworkable and legally vulnerable, representing a regulatory solution that is demonstrably worse than the problems it purports to address,” the International Center for Law & Economics, a Portland, Oregon,-based think tank, said in its comments.
The rule, the Computer & Communications Industry Association said in its comments, would force platforms to allow outside entities to manage content without oversight or privacy protections.
“This approach would make it harder to remove scams, harassment, and other illegal or dangerous content, while violating websites’ First Amendment right to decide what speech they host,” said the association, which is the lobbying arm of the computer industry.
And NetChoice, a trade association of online businesses that successfully sued to block laws in Florida and Texas that had similar objective, said in its comments that Bailey had misunderstood the U.S. Supreme Court decision in its favor.
In that ruling, the court said the Florida and Texas laws violate the First Amendment rights social media companies enjoy as publishers of content.
NetChoice wrote in its comments that “rather than respecting regulated websites’ First Amendment rights recognized in (the court decision), the rule would trample over those protections.”
In the withdrawal notice, the attorney general’s office said it agreed with the concerns from commenters about the feasibility of implementing the rule as drafted and that more work would be required.
“The attorney general’s decision to withdraw this rulemaking,” the notice stated, “is not due to comments suggesting he lacks legal authority to issue the rule.”